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11th District: Municipal court abused its discretion in animal cruelty case

TRACEY BLAIR
Legal News Reporter

Published: December 13, 2019

A trial court erred and abused its discretion in ordering restitution in an animal cruelty case, the 11th District Court of Appeals recently ruled.
Bianca Marcellino was charged with two misdemeanor counts of cruelty to animals after a search of her property revealed two horses in need of emergency medical aid. Initially, the condition of the horses was reported by a neighbor of Marcellino’s to Christian Courtwright, an agent of the Geauga County Humane Society. After multiple visits to Marcellino’s property to observe the condition of the horses over the course of approximately one month, Courtwright was concerned about the lack of progress in rehabilitating them.
Courtwright claimed Marcellino was uncooperative and eventually refused him entry onto the property. A search warrant was issued to remove the horses, which were seized.
At trial, Marcellino denied she had been uncooperative. A veterinarian testified they were in severe need of care because they were emaciated. After being removed, the horses were placed on a starvation feeding program and cared for by the Humane Society at its own cost.
According to the veterinarian’s testimony, the Humane Society was able to rehabilitate the horses to a healthier and unemaciated status within 60 days of their removal. Ultimately, Marcellino was found guilty by a jury on both counts.
She was sentenced to 90 days in jail, which were suspended pending successful completion of a five-year probation term. She was also ordered to pay $14,773.03 in restitution to the Humane Society for the total cost of impounding the two horses.
On appeal, Marcellino argued the Humane Society was not the victim of the offenses and that R.C. 2929.28 limits restitution to the economic loss suffered by the victim.
Marcellino pointed to various instances where a governmental agency cannot be awarded restitution for the cost of conducting business in pursuit of investigating a crime because the agencies are not “victims.” However, since the horses cannot receive restitution on their own behalf as victims, the Humane Society argued it is logical that any entity providing for their rehabilitation and care should be
reimbursed for those costs.
The Third District Court of Appeals addressed a similar issue in State v. Ham, (2009-Ohio-3822), and interpreted R.C. 2929.18(A)(1), which contains very similar language, that the General Assembly intended restitution be available only to actual victims of the offense. The Third District also found that
governmental entities are not ‘victims’ entitled to restitution for their expenditure of public funds for fighting crime.
“We agree … that restitution cannot be ordered to be paid to a humane society—or other governmental
entity—for the costs of caring for an animal victim of abuse under R.C. 2929.28,” Cannon wrote in his opinion.
However, the appellate panel rejected Marcellino’s argument alleging the trial court erred and abused its discretion by denying the motion for a Franks hearing where there were affidavits demonstrating material false statements in the affidavit for a search warrant.
“A charge of cruelty to animals requires a finding that Marcellino, inter alia, tortured an animal, deprived it of necessary sustenance, or impounded or confined an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water,” Cannon added. “There is no doubt that the Courtwright
affidavit, if accepted as true, establishes probable cause to believe that a violation of R.C.959.13(A)(1) had occurred on the Marcellino property.
Cannon noted that Marcellino filed a motion to suppress, but then withdrew it.
“Obviously, if the motion to suppress had been maintained, many of the contentions in the Franks motion would have been addressed at the hearing on the motion to suppress,” he said. “The trial court was confronted with a Franks motion but no motion to suppress. “We hold that when the trial court denies a challenge pursuant to Franks based on the pleadings alone, we review the decision not to hold a hearing under a clear error standard of review. Under this standard, we give due weight to inferences the trial court drew from the facts.”
Appellate judges Cynthia Westcott Rice and Matt Lynch concurred. The case is cited State v. Marcellino, 2019-Ohio-4837.


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